Federal Appeals Court Ruling Affirms Less Burdensome HSR Form is Back

On March 19, 2026, the U.S. Court of Appeals for the Fifth Circuit denied the Federal Trade Commission’s (FTC) emergency motion for a stay pending appeal of the U.S. District Court for the Eastern District of Texas’s ruling vacating the HSR Act filing form that took effect on February 10, 2025 (February 2025 HSR form). The Fifth Circuit’s one-sentence per curium order did not provide any insight into its decision. [link to February blog post]. 

Key Takeaways:

1. Effective immediately, parties may use the much less burdensome, pre-February 2025 HSR form; parties also have the option of using the February 2025 HSR form if they choose.[1]
2. The pre-February 2025 HSR form will be in effect unless and until the FTC decides to appeal to the Fifth Circuit on the merits and succeeds.

Practical Implications of the Court’s Ruling

Unlike the February 2025 HSR form, which differentiated between acquirers and sellers/targets, the pre-February 2025 HSR form has the same sections for all filers.

The pre-February 2025 HSR form does not include many of the February 2025 HSR form’s most onerous sections, meaning that filing parties no longer need to complete sections relating to:

1. Identifying horizontal and/or vertical relationships between the parties;
2. Producing ordinary course plans & reports shared with the CEO and board of directors for overlap transactions;
3. Providing details on fund structure, including providing the identity of general partners and certain limited partners;
4. Determining the supervisory deal team lead as an additional document custodian;
5. Drafting a transaction rationale; and
6. Listing foreign subsidies and countervailing duties.

Further, the following “party-specific” sections of the new HSR form no longer apply: 

1. Acquirers no longer have to identify officers and directors who also serve as officers or directors of third parties, list ex-US merger control regimes that apply to the transaction, list other agreements between the parties; and disclose defense and intelligence contracts.
2. Targets no longer have to disclose prior acquisitions. 

In addition to the sections of the February 2025 HSR form listed above that no longer apply, other onerous aspects of the instructions to the February 2025 HSR form are now invalid. These include: 

1. The requirement to produce drafts of Transaction Related Documents (once again referred to as Item 4c/d documents, which analyze or evaluate competition-related and/or synergies-related aspects of the transaction that is the subject of the HSR filing) shared with any individual director in his/her role as director, in contrast to the prior requirement to only produce drafts that were shared with the entire board or entire board committee/sub-committee;  
2. The requirement that non-binding agreements must have some combination of 8 features which the parties must explicitly certify that it “provides sufficient detail about the scope of the entire transaction the parties intend to consummate” in order to serve as the basis of an HSR filing;
3. The expansion of NAICS codes that require street-level reporting when there is a NAICS overlap between the parties; and
4. The requirement to translate all non-English language Transaction Related Documents and ordinary course Plans & Reports. 

What Next? 

As we noted in February [link to February blog post], the FTC will have to update the pre-2025 HSR form to add in a section on foreign subsidies (as required by the Merger Filing Fee Modernization Act of 2022, enacted as part of the Consolidated Appropriations Act of 2023). Beyond that, it remains to be seen what features of the now-defunct new HSR form, if any, the FTC will seek to re-implement via a new rulemaking.